The group of 30 citizen contractors had sought the court to issue an interdict restraining the Attorney-General, the Public Procurement and Asset Disposal Board (PPADB) and 18 companies that won the tender from going ahead with the works. They said the tenders were awarded irregularly.
But Justice Julia Sarkodie-Mensah ruled that the contractors had “failed to make a proper case for an interdict against all the respondents”. She dismissed the application mainly on legal technicalities.
The spokesman for the disgruntled contractors, Allen Compton, accepted the setback but maintained that the legality of the award is their main point of contention and they “intend to go ahead with the matter”.
The tender dispute has raised public interest due to allegations of irregularities in tender processing and award and the reported involvement of high profile politicians. Affidavits presented in court allege that the 2005 tender process, unlike the previous ones, had been fraught with anomalies from the outset. The disgruntled contractors allege that the flawed tender process had in effect resulted in “one person (a politician) ... and/or his family” being awarded about 40 percent of the entire tender.
The alleged beneficiary referred to is Christiaan De Graaf, Member of Parliament for Ghanzi South. The affidavits list Gantsi Grading (Pty) Ltd, Nellie’s Contractors (Pty) Ltd, Albertus Lemcka (Pty) Ltd and Intensive Agritech (Pty) Ltd among companies associated with the MP. It is alleged that De Graaf Grading, the company that also won some tenders, is owned by a close relative of the MP.
Another tender beneficiary company – Intensive Agrictech (Pty) Ltd is jointly owned by Christiaan De Graaf, Kehitlang Florence Nkate and Queena Nkate, the wife of Education Minister and Ngami MP Jacob Nkate. Contractors linked to De Graaf and associates were reportedly given most of the tenders in Ngami, Ghanzi, Kgalagadi and the South (Lobatse), the affidavits allege.
The affidavits also link Duncan Mlazie, the Assistant Minister of Finance and Development Planning and Member of Parliament for Chobe, to the tender awards. It is alleged the contractor who won most of the tenders in Chobe was previously sub-contracted by Mlazie’s companies.
Affidavits by the dissatisfied contractors also raise serious concerns about Best Builders (Pty) Ltd - one of the companies awarded the tender. One of the company directors and shareholders, David Mmui is alleged to be a member of the evaluation committee of the Agricultural Resource Board (ARB). ARB is charged with assessing and recommending tenders to PPADB.
One of the companies that won at least seven firelines is Gorba Investments (Pty) Ltd, which is jointly owned by the sons of Customary Court of Appeal president Kgosi Linchwe II, Bakgatle Kgafela and his elder brother Kgafela Kgafela, the court papers allege. There are allegations linking the younger Kgafela to one of the line managers/directors of PPADB too.
The disputed tender was advertised on February 25 in the Government Gazette. Some of the requirements to pre-qualify for the tender included site visits by bidding companies certified by ARB, location and proximity.
On proximity, the petitioners allege that, “the awarded contractors are not all based in close proximity to the intended works as will be seen from the tender award”.
They took a dim view of the postponement of the tendering process. The petitioners assert that initially the site visits were postponed, without satisfactory explanation by ARB. “It would appear that certain of the larger contractors complained that they had been excluded from eligibility on account of not falling into the smallest category of the tender, 14:05 and asked for an opportunity to address this,” the affidavit said.
Information reaching Mmegi indicates the postponement followed an appeal by larger contractors for the intervention of “higher authority”.
This afforded the larger contractors an opportunity to go and register for specific categories with PPADB. They did this in a record one week. Industry sources say the process normally takes three to six months.
After the big players achieved their aims, the tender was re-advertised in late March and new site visit dates set. About 168 contractors are reported to have tendered initially.
ARB assessed and recommended at least 78 companies and forwarded the names to PPADB. It was at this point that five companies that did not make the cut protested over alleged irregularities citing the recommendation of one company to more than one tender.
“We wondered how the complainants got hold of this supposedly confidential information, and we made our concerns known to PPADB,” said a source.
PPADB then suspended the tender award, pending investigations by the Directorate on Corruption and Economic Crime (DCEC). Before DCEC could finish its work, information leaked to the effect that PPADB had appointed a committee to re-evaluate the tenders. Mmegi is reliably informed that the committee comprised mainly officers from the Roads Department.
“We immediately requested an urgent meeting with PPADB around June, which was granted and chaired by Mr. Lefoko, the deputy director of PPADB. We asked him what the legal status of the new evaluations would be, should the DCEC investigations clear the ARB tender process. The answer we got was that, ‘we will cross the bridge when we come to it’. At that meeting, we also sought an explanation why PPADB had not responded to our letter of March in which we queried the postponement of the tender site visits and awards. Lefoko’s response was to ask us to go back and write a letter to remind them to reply to our letter. Since we found that very strange, we never bothered to write such a letter,” said a source.
Ultimately, the DCEC investigations cleared the tender process by ARB.
Though the investigations came due to complaints that some companies stood to be awarded more than one tender, the final PPADB award list had reduced the number of awards to 18 companies. This resulted in instances of one of the contractors getting at least 40 per cent of the entire tender. Apparently, even most of the Department of Roads’ recommendations were ignored.
